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Medical Malpractice: If No Cure, Palliation Will Do

Goldwyn, Robert M. M.D.

Plastic and Reconstructive Surgery: September 1st, 2003 - Volume 112 - Issue 3 - p 907-908
doi: 10.1097/01.PRS.0000072258.69809.6A

Robert M. Goldwyn, M.D.

1101 Beacon Street

Brookline, Mass. 02446

When I was young, I thought our society could achieve justice; when older, I thought we could reach a kind of equity; now, all I hope is that we find a sense of proportion.

What precipitated these musings was my having encountered a colleague last week at the annual meeting of the American Society of Plastic Surgeons in San Antonio. He practices in Pennsylvania, in a “blue collar area,” as he termed it, and must pay $75,000 a year for malpractice insurance. The cost rises, he explained, to $150,000 if he has two suits, even if they have been dismissed. That an obstetrician must disburse $275,000, a neurosurgeon, $200,000, and an orthopedic surgeon, $165,000 does not make the situation reasonable or acceptable; nor does it make practicing feasible.

When we took the Hippocratic oath upon graduation from medical school, we did not pledge ourselves to bankruptcy. And talking about medical schools, the deans, vociferous on other topics, such as the curriculum, have been shamefully silent on this matter. Perhaps they will find their voice when the university-affiliated hospitals and their doctors fail in the struggle to defray the mounting expenses of malpractice, its premiums and awards.

Increasingly, the payments ordered by juries to plaintiffs have become astronomical to the point of absurdity. A current example of a system gone haywire was a Los Angeles jury expecting Philip Morris to pay $28 billion in damages to a 64-year-old woman with lung cancer who blamed the tobacco manufacturer for failure to warn her of the risks of smoking. While I am not sympathetic toward a tobacco company, that it should pay an amount more than the gross national product of some countries is a combination of extortion and lunacy. The verdict will undoubtedly be appealed and will likely be reduced, but whatever the final settlement, the attorneys will receive at least 30 to 40 percent.

When will this medical malpractice madness end? Probably when the public realizes that they can no longer afford the cost or obtain the services of doctors who have finally given up. For us physicians to protest as we have been doing for decades has obviously not succeeded in lessening our burden of malpractice. We went to medical school to become doctors and not defendants. Some physicians have suggested that we refuse to give elective services. Although I deplore suggesting such a course, I truly believe it is going to take new actions on the part of doctors to change how our society handles malpractice. The patient who has been the recipient of negligent medical care should certainly get emotional and physical redress and compensation that is tangible and reasonable. The attorney should also receive recognition for his or her services and something tangible and reasonable, but not munificent. One case should not a Croesus make.

Perhaps with the advent of universal health coverage, suing a physician or a hospital will be more difficult. The process would probably be as rapid and satisfying as bringing to court the United States Post Office because one of their trucks dented your fender and one of their clerks misplaced a letter.

Our country has many wonderful blessings and qualities. It is regrettable that we are embroiled in endless, enervating disputes that we are unable to resolve except through legal recourse. We have become not only affluent but fractious. Litigation has become our obsession, our favorite indoor sport. And this brings me to what everyone will soon read about.

Next week I shall instigate a suit against the Boston Red Sox for their having failed to bring a League championship or World Series to my hometown—not only last year but for more years than I choose to remember. At no point did the Red Sox organization or any of its legally designated members inform me of that possibility. I never signed an informed consent when I bought a ticket and witnessed a defeat. The suffering and emotional pain that their losing has engendered in me is immense. My psychoanalyst is pessimistic about my chances of recovery. He has even obliged my neurosis by dressing as a New York Yankee. I have had to endure the looks of alarm I receive from passers-by when I enter his building for my session. Is it really that odd that I dress like Nomar Garciaparra, even with his number, and am carrying a faithful reproduction of his favorite bat?

My attorneys assured me that they are working on an impressive sum as damages to compensate for my pain and suffering. I am joining in a class action proceeding with more than 600,000 fans against Manny Ramirez, who failed to hit a home run on every occasion that he came to the plate. I am also suing Pedro Martinez, who lost three games. The fact that he won 20 makes no difference. Both these players have trained and played long enough to give a faultless performance, for which I paid plenty of money to see. Please understand that I like these players personally, but I know that the Red Sox have insurance. I am not being unreasonable; I am simply reacting to their mal-playing. If the Red Sox wish to settle, and they probably will to get rid of me and reduce the cost of litigation, I would consent, if my attorneys agree. I could use the money to attend every game, at home and away.

I want to make something very clear: my lawsuit is not about money. It is about principal—I mean, principle. Every night, even though I am an insomniac because of my emotional pain, I manage to give thanks for the existence of trial attorneys who exist selflessly to benefit the average person. I am delighted that they have bonded to politicians of a certain party.

I confess that as I grow older, I become more childish, more naive, and less comprehending. How is it that a physician who tries hard every day to improve the well-being of patients must fear and fight lawsuits, whereas those who have headed companies whose stocks have plummeted and caused misery to those who believed in their quarterly reports and the audits of their accountants not only escape responsibility but demand and receive enormous salaries, flagrant stock options, plush perks, and severance pay-outs that make the Queen of England look poor? Medical malpractice is not just a problem for doctors. It is a cancer that deserves concerted attention, which might result in effective therapy.

©2003American Society of Plastic Surgeons